by Hon. Mitchell Kaplan

Voice of the Judiciary

Before I was appointed a judge, if someone had asked me to list the most interesting things that a trial judge does, I doubt that I would have included chatting with jurors after they have rendered their verdict. However, over the last seven years I have found those post-verdict conversations to be enlightening, reaffirming, and frequently entertaining.

In each county, Superior Court judges are assigned on a rotating basis, each week, to welcome the day’s pool of prospective jurors, as required by law. See G.L. c. 234A, § 65. Depending on the county in which you are sitting, your turn comes up every couple months. Judges take different approaches in their greetings. Part of my approach is try to convince my audience, some of whom are usually skeptical, that most people find jury service an interesting and rewarding experience. I go on to say that when we (judges) speak to jurors who have been seated on juries after they have returned their verdicts, we find that sometimes they have made new friends, they have learned something more about our criminal or civil justice system, and they always feel that they have made an important contribution to their community. I say this to encourage our potential jurors to serve, and also because I believe it is true.

While I have had the good fortune to speak to a great many juries over the past seven years, these are just personal observations and, therefore, only anecdotal. After I receive a verdict (or declare a mistrial) and formally thank the jurors for their service, I always tell the jurors in open court that I would like to thank them in a less formal setting in the jury room. I make it clear that this isn’t an order and they are free to go, but if they have time I hope they will stay a few moments. I don’t think that any juror has ever left before my court officer escorted me to the jury room. While some juries are polite, but clearly anxious to disperse and go on about their business, the majority of juries have questions they want to ask, suggestions they want to offer, or generally want to chat about their experience. I think that juries that have “bonded” during their service are more likely to linger.

After explaining that I do not want to know anything about what jurors said to one another or the course of their deliberations, which I hope they will hold confidential (although having returned their verdict they are freed from any legal obligations not to speak to others), I ask if any juror has any question, comment or observations. Sometimes that prompts a number of jurors to speak up and sometimes I have to prod with a few questions of my own before a conversation ensues. Here are some general observations.

Jurors take their responsibilities very seriously–they truly understand that they have been the judges of the facts of the case. Obviously, the subject matter of cases varies. Some cases are clearly more difficult to decide; some are more emotional; and in some the consequences of the verdict are clearly enormous. Frequently, jurors are physically exhausted at the end of their deliberations. It is not uncommon to find jurors in tears or fighting them back. I suspect sometimes that may be because a juror has been convinced to change his or her view of the evidence or a fact. Sometimes, it is because they have had to make an emotionally difficult decision.

I believe that jurors take very seriously their oath to apply my instructions to the facts as they find them. Personally, I don’t think that I have ever witnessed jury nullification. To the contrary, I have had jurors in tears in a personal injury case because they had found for the defendant, even though the plaintiff was very sympathetic or had suffered a debilitating injury. They had concluded that the defendant just was not negligent. On a number of occasions in criminal cases, it has been clear that the jurors thought that the defendant was probably guilty of the crime, but the prosecution had not proven guilt beyond a reasonable doubt. Conversely, jurors have found defendants guilty, but expressed concern over the potential length of the sentence.

Frequently, jurors ask me if there was any additional evidence that had been excluded from trial. More often this comes up in criminal cases, but sometimes in civil cases as well. I don’t have the sense that the jurors are angry that evidence was not presented, they just wish that they had more material on which to base their decisions. I think that collectively juries are very good at figuring out where the missing pieces are in the chain of evidence or events.

A recurring comment is that jurors do not want the lawyers to repeat the same point, over and over. Innumerable times juries have told me that they got it the first time, certainly the second time, and by the fifth time they really didn’t want to hear about it again. Indeed, some juries find the repetition condescending not convincing. Often juries will point out that the trial bogged down over “stuff” that was not relevant to their decision making. It was as if the lawyer was afraid to leave something out. I think that jurors appreciate charts and graphs that make data understandable, although they will do their best to sort through materials themselves if they have to. In one case in which critical evidence was on a surveillance video, a technologically savvy juror displayed the video frame by frame during deliberations. Juries tell me that they try to get past which lawyer they liked the best, but obviously they appreciate lawyers who make their job easier.

I think that even in an informal setting there is a tendency for jurors to tell judges what they think the judge would like to hear. Nonetheless, when I ask, jurors overwhelming tell me that their jury service has been a rewarding experience and they would like to do it again—but not too soon (especially when the trial takes more than a week).

I truly believe that if lawyers, or the public, were flies on the wall when judges chatted with jurors after a trial, it would make them believe what I believe, that while jury trials may not be the perfect way to resolve disputed issues of fact, they are the best way so far devised.

Mitchell Kaplan is a justice of the Superior Court and currently sits on the Business Litigation Session of the court. He was previously a partner at Choate, Hall, & Stewart and served as a law clerk to Hon. Joseph L. Tauro, USDC.

by Hon. Kenneth V. Desmond, Jr.

Voice of the Judiciary

Throughout the past several decades, State and Federal appellate courts have candidly acknowledged the implicit biases of litigants and jurors. Although social science research has found that judges are just as susceptible to unconscious bias as the rest of the population, the paucity of case law acknowledging judicial bias underscores the need for introspection. Since confronting subconscious attitudes and stereotypes is challenging for many, the process of eradicating the influence of race and implicit bias on the Massachusetts judicial system is likely to take many years. Chinese philosopher Lao-Tzu said “the journey of a thousand miles begins with one step.” With that in mind, the Trial Court recently took the first step of its “thousand mile journey” to eliminate the influence of implicit bias by establishing the Departmental Race and Implicit Bias Advisory Committee.

The Committee was formed in response to feedback from attendees of the September 2015 All Court Conference on Race and Implicit Bias. According to Chief Justice Ralph Gants, the decision to hold the All Court Conference was prompted by recent events in Ferguson, New York, Baltimore, and Cleveland that “raised important questions about the intersection of race and justice in our country.” The Supreme Judicial Court recognized the value of examining the court’s role in “addressing race as it affects the pursuit of justice,” and “resolved to open a dialogue among Massachusetts judges” to consider the way implicit bias impacts the Commonwealth’s courts. The subsequent formation of the Committee was a way for the Trial Court to continue that dialogue at the departmental level.

In the most basic sense, implicit bias is “thoughts about other people you didn’t know you had.” Consequently, it is often difficult for individuals who do not fall victim to the impact of certain biases to identify the ways they are manifested. Within the Trial Court, however, implicit racial, cultural, gender and other biases have opportunities to exhibit themselves in myriad ways.

Implicit racial bias, for example, can manifest in the form of erroneous assumptions that a person of color is not a judge, attorney, or officer of the court. Implicit racial bias may also explain the disparity between the number of non-Hispanic whites and persons of color given the opportunity to participate in Drug Court, which offers offenders an opportunity for rehabilitation instead of incarceration. Indeed, while non-Hispanic whites in Massachusetts use illicit substances at slightly higher rates than members of racial and ethnic minorities, incarceration rates for distribution offenses that do not carry mandatory minimum sentences are six times higher for persons who identify as black. Juveniles are not exempt from the subconscious biases that fuel these trends. Of all the youths arrested for weapons offenses in 2010, white youths were arrested at approximately double the rate of black youths. However, of all the youths that were held in custody for weapons offenses, black youths comprised 52% while white youths represented a mere 16%.

Implicit cultural biases can lead Trial Court staff members to erroneous conclusions about a constituent’s demeanor. A judge or clerk interpreting a lack of eye contact as representative of disinterest may be less patient with a litigant who avoids eye contact than a judge or clerk who knows that in many cultures, eye contact is a sign of disrespect. Implicit gender biases have the potential to impact the outcome of familial disputes, such as the distribution of assets in a divorce or the likelihood of a male obtaining a protective order from an abusive partner as compared to the chances of a female requesting one on the same basis. One study found that 65% of transgender Massachusetts residents had experienced discrimination in an area of public accommodation. Discriminatory, or even preferential treatment may also arise from implicit biases concerning sexual preference, age, weight, disability, and religion, among others.

By way of the Committee, the Trial Court seeks to create a system that embraces and understands all people regardless of their identity. The Committee is comprised of Chief Justice Paula Carey and Court Administrator Harry Spence as well as one or more individuals (mostly judges) from each Trial Court Department who have been appointed by their respective chief justices. Committee members are charged with initiating a dialogue about implicit bias within their department and encouraging others to get involved with the effort to help all Trial Court staff members recognize that an egalitarian judicial system is the only way to build and promote public confidence and trust that the Trial Court will administer justice impartially to everyone that it serves.

The Committee recognizes that the implicit associations we hold “do not necessarily align with our declared beliefs,” and seeks to implement checks and balances that give Trial court staff members pause before they make a decision. Already, the Committee has created bench cards to be distributed all Trial Court justices and clerks that encourage them to engage in “more deliberative, effortful processing” when making a decision, and thereby discourage low-effort decision-making that relies on intuition informed by stereotypes or prejudice.

The Committee also understands that exposure to stigmatized group members “can help individuals negate stereotypes . . . and ‘unlearn’ the associations that underlie implicit bias.” Accordingly, the Committee intends to identify and encourage the use of diverse recruiting resources, and advance staff members’ cultural awareness through workshops and other forms of training. This fall, the Committee plans to introduce a resource bank on the Trial Court’s intranet to ensure that the materials distributed at these trainings are accessible to all. To create a judicial system that is user-friendly for everyone, the Committee also plans to assess the experiences of Trial Court users through surveys and focus groups, and is considering the implementation of educational opportunities for pro se litigants who are struggling to comply with their legal obligations.

If you are interested in assessing your own implicit biases, Harvard University’s Project Implicit has free online tests available that allow you to assess subconscious preferences based on race, gender, and sexuality, among others.

Chief Justice Paula Carey recognizes that “issues related to race, bias and power are among the most difficult to confront, discuss and address since they are embedded in an organization’s structures and practices, they are often invisible to many, and they prompt defensive reactions.” She believes that taking these issues on will be “a challenging journey but well worth the effort.”

Judge Kenneth V. Desmond, Jr. has served on the Massachusetts Judiciary for eleven years. He was appointed to the Massachusetts Superior Court in December 2012 and prior to that served on the Boston Municipal Court. He is a Trustee of the Flaschner Judicial Institute and Chair of the Trial Court’s Departmental Race and Implicit Bias Advisory Committee. Judge Desmond is a graduate of Tufts University and Boston College Law School.

by Nadine Cohen and Todd S. Kaplan

Point

The foreclosure crisis in Massachusetts is not over. Massachusetts foreclosure rates continue to climb, depressing values of surrounding homes, creating urban blight, decreasing the economic health of predominantly low and moderate income communities, especially communities of color, and generally negatively affecting economic vitality and residential lending in Massachusetts. Foreclosures affect us all. So what can be done? It is time to look seriously at adopting judicial foreclosure.

Almost all foreclosures in Massachusetts go forward without an opportunity for the homeowners to challenge the foreclosure or present important defenses, including: that they do not owe what is claimed; that the foreclosing entity does not own the mortgage or note; or that the mortgage was obtained by fraud.

Oftentimes, challenges to an unlawful foreclosure are not made until the owner is being evicted – the first time there is an opportunity for a hearing before a judge. Ironically, Massachusetts law offers greater protection for rental tenants in Summary Process cases than it does to former homeowners facing foreclosure.

More than sixty percent of the US population benefits from the opportunity to be heard that judicial foreclosure provides. As a state that values transparency and due process, why is Massachusetts so backward in its foreclosure laws?

Non-judicial foreclosure was traditionally allowed only because foreclosing entities exercised strict compliance in every step of the foreclosure proceeding. This was an honor system, predicated upon lenders maintaining high standards of legal precision in writing, conveying and, if necessary, foreclosing upon mortgages. The foreclosure process therefore did not require a judge’s supervision.

As the residential mortgage market became more complex—including through securitization, assignment of mortgages into trusts, and consolidation of banks into large entities—it also became clear that banks and foreclosure firms often foreclosed carelessly and did not strictly follow the foreclosure statutes or power of sale provisions of the mortgages.

This has been made clear by the many SJC cases involving banks and foreclosure firms that did not comply with the strict procedural requirements. Specifically, beginning with U.S. Bank Nat. Ass’n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40 (2011), the Supreme Judicial Court has ruled on a number of foreclosure cases, finding that banks and mortgage holders failed to properly foreclose because: they did not hold the mortgage and note at the time of the foreclosure; they did not send the appropriate notices required by statute; or they failed in some other way to strictly comply with power of sale provisions of the mortgage. The lower court decision in Ibanez stated that many lenders have been allowed “to take someone’s home without any demonstrable right to do so.” Judicial foreclosure is needed to ensure this does not continue to happen. The absence of judicial oversight over foreclosures in Massachusetts has resulted in many foreclosures being invalidated, creating a slew of foreclosed homes with title problems, unnecessarily displacing homeowners, destabilizing neighborhoods, and breeding mistrust and ill-will for mortgage lenders. Despite the legislature adding new notice requirements to Mass. G.L. c.244, this did not cure the problem of unlawful foreclosures. In fact, the number of foreclosures in Massachusetts has been increasing and many continue to be improper.

One study by the Center for Responsible Lending found that, “on average, families affected by nearby foreclosures have already lost or will lose $21,077 in household wealth, representing 7.2 percent of their home value, by virtue of being in close proximity to foreclosures.” Another study by the Alliance for a Just Society estimated lost wealth due to foreclosures at $192.6 billion, an average of $1,700 in lost wealth per U.S. household and that there was a disproportionate effect on communities of color.

In addition, the absence of judicial foreclosure has overburdened the Housing and District Courts that hear Summary Process cases because this is the first opportunity that former homeowners have to challenge the underlying validity of the foreclosure auction and sale. This system clogs up the Summary Process docket and forces often complex litigation into courts that are set up to adjudicate simple and straightforward evictions of tenants. For these cases, this has taken the “summary” out of summary process!

From colonial times, Massachusetts has been a leader in protecting the rights of its residents to due process of law. The Massachusetts Constitution’s due process clause was a model for that of the U.S. Constitution. Yet, regrettably, Massachusetts now lags behind in protecting these rights in the foreclosure process. It is clear the honor system of non-judicial foreclosure has failed: This is especially so for homeowners who have wrongfully been foreclosed upon and for unsuspecting third party buyers who have had to face summary process eviction claims. We urge Massachusetts to join with the over 20 other states that mandate judicial foreclosure in affording homeowners a fair hearing and the right to a day in court, in order to ensure that the law has been followed before they lose their homes. It is a matter of fundamental fairness to extend this basic protection to citizens.

Nadine Cohen is the Managing Attorney of the Consumer Rights Unit of Greater Boston Legal Services. She has been representing homeowners in foreclosure cases since the foreclosure crisis began in 2008.

Todd S. Kaplan is a Senior Attorney at Greater Boston Legal Services. He has worked at GBLS for over 19 years and has worked in the Consumer Rights Unit for over 5 years representing homeowners pre and post-foreclosure. Prior to that he represented tenants facing eviction and was part of a team of attorneys that resulted in a landmark settlement with the MBTA for persons with disabilities.

by Robert J. Moriarty, Jr.

Counterpoint

This is not the time to move to a system of judicial foreclosure in Massachusetts. The current system of non-judicial foreclosures has worked as it should, allowing foreclosures to proceed independent of the courts, yet simultaneously allowing judicial intervention where appropriate to protect the rights of borrowers from improper practices.

Although foreclosure requires the knowledge and experience of an attorney, the process itself is largely formulaic. There are notices that must be sent and legal advertisements that must be drafted and published, each on particular dates and at particular intervals, and there is a process that must be followed for the entry and for the foreclosure public auction.

For centuries, Massachusetts attorneys have handled this process properly while the courts have stood available to resolve disputes only when necessary. This system has conserved judicial resources for disputes that truly require judicial intervention. If the Commonwealth now adopted a system of judicial foreclosure, the regular would become the routine, with courts inevitably treating the process as an administrative one and focusing on the process itself rather than the substance. The cases would be handled by clerks with minimal involvement by judges. There is no reason to believe that the administrative process of judicial foreclosure would enhance borrowers’ rights. Indeed, the opposite is true: The influential foreclosure decisions of the Massachusetts courts (e.g., U.S. Bank Nat. Ass’n v. Ibanez, 458 Mass. 637 (2011), Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), Eaton v. Federal Nat’l Mortgage Ass’n, 462 Mass. 569 (2011), and their progeny), have resulted not from judicial foreclosures, but from a system that allowed the foreclosures to receive the particular attention of a judge in a singular case.

Conversely, there is grave concern that the courts do not have the resources to handle the volume of judicial foreclosure cases. The Land Court and the Superior Court already are taxed by their existing caseloads. And the recent example of the Servicemembers’ Civil Relief Act—which required the Land Court to review and approve certain foreclosures—has shown how the increased workload has led to delays in the completion of foreclosures.

Although foreclosures are symptoms (not causes) of an economic downturn, systematic delays in foreclosure beyond those necessary to protect the rights of borrowers can aggravate an economic downturn. The presence of large numbers of homes in foreclosure has an adverse effect on communities, where the homes may sit vacant or in disrepair for an extended period of time. Cities and towns that are already economically disadvantaged are likely to suffer even more. The system of judicial foreclosure in Florida is instructive. There, the judicial foreclosure process became so bogged down that delays as long as three years became the norm. The courts could not handle the volume of cases, so cases waited for hearing dates. Values remained depressed, condominium associations struggled to collect sufficient revenues, and the overall economy struggled. It is not a coincidence that the Massachusetts real estate market has improved dramatically from the depths of the recession, while Florida brokers are still complaining and newspapers are still writing about the adverse effect of distressed real estate and foreclosures.

Massachusetts has traditionally been in the forefront of protecting its citizens, and it remains so. In the wake of the scandals regarding predatory lending and failures in the secondary mortgage market, the General Court enacted significant changes to Mass. G.L. c.244, § § 35A, 35B, and 35C, that protect borrowers in pre-foreclosure contexts to a degree not found in many other states. We have a system in place that has worked, and has mostly respected the rights of borrowers. Where that has not happened, our courts have been vigilant in protecting those rights. Judicial foreclosure will strain our courts and create delays that harm the economy and real estate market. There is no evidence that a change in the foreclosure process will protect the rights of borrowers to any greater extent than the existing process. Where our existing system of non-judicial foreclosure is not broken, there is no need to fix it.

Robert J. Moriarty, Jr. is a founding partner in Marsh, Moriarty, Ontell & Golder, P.C. and has concentrated his practice in commercial and residential real estate. He is a frequent lecturer on complex title matters and is a former president of REBA.

by Paul Holtzman and Jill Brenner Meixel

Heads Up

The opioid epidemic has reached historic proportions in the Commonwealth and beyond, as we are reminded by near daily news stories detailing its devastating consequences. Massachusetts leaders have taken strong steps to curb the epidemic, including legislation signed by Governor Charlie Baker in March.[1] Similar legislative efforts, including additional funding for treatment, are advancing in Congress, and the Department of Health and Human Services (“HHS”) announced in March an initiative to increase access to medication-assisted treatment (“MAT”) which employs medication, counseling and education.

While the Commonwealth has prioritized the need for additional treatment, municipal restrictions often hamper efforts by nonprofit and other providers to site substance-abuse treatment programs. Although public opinion supports expanded treatment in the abstract, when a particular counseling or treatment program is proposed, opposition often arises from neighbors (whether commercial or residential). In response, municipal officials sometimes advance pretextual bases to deny a building permit or certificate of occupancy.

Attorneys can play an important role in advocating for these programs by marshaling protections offered by state and federal law to overcome unlawful zoning restrictions and discriminatory NIMBY (“not in my backyard”) opposition. This article outlines two statutory sources of protection for providers seeking to address the epidemic. In addition, it discusses case law supporting remedies for substance abuse and other social-service programs that have been impeded by neighborhood opposition grounded in stereotypes about, or hostility toward, those suffering from addiction or other disabilities.

The Dover Amendment, M.G.L. c. 40A, §3, ¶ 2.

While a municipality may generally impose zoning restrictions to regulate where different types of uses – residential, commercial, medical, etc. – may be sited, when an educational nonprofit seeks to site a predominantly educational program, M.G.L. c. 40A, §3, ¶ 2, also known as the “Dover Amendment,” expressly prohibits a municipality’s zoning ordinances or bylaws from “regulat[ing] or restrict[ing] the use of land or structures” for that purpose. This means that a qualifying use must be permitted as of right in any zoning district. This law “represents a specific exception to the general power of municipalities to adopt and enforce zoning regulations and by-laws.” Regis College v. Town of Weston, 462 Mass. 280, 289 (2012).

The Massachusetts Zoning Act, which includes the Dover Amendment, authorizes courts to enjoin violations of the Dover Amendment. See M.G.L. c. 40A, §7. When representing a substance-abuse facility in response to a municipality’s invocation of inapplicable zoning restrictions, the Dover Amendment is an important legal tool. Sometimes town officials are not familiar with the provision and a demand letter can resolve the dispute. In other cases, it is necessary to obtain injunctive relief. Qualifying nonprofit organizations have successfully negotiated settlements which include both permission to site their program at the chosen location and substantial attorney-fee awards.[2]

What uses qualify as predominantly educational?

If a program’s educational purpose is subordinate to other purposes, it does not qualify for Dover protection. “The Dover Amendment protects only those uses . . . that have as their bona fide goal something that can reasonably be described as educationally significant”; such an “educationally significant goal must be the ‘primary or dominant’ purpose for which the land or structures will be used.” Regis College, 462 Mass. at 285.

However, courts “have refused to limit Dover Amendment protection to traditional or conventional educational regimes.” Id. In fact, recognizing that the term “education” is a “broad and comprehensive term,” courts have determined that education is the primary or dominant purpose for which land or structures will be used in programs including substance-abuse treatment centers, group homes, programs serving formerly institutionalized adults with mental disabilities, facilities for the care and education of emotionally disturbed children, and organizations helping the homeless. Id.; Campbell v. City Council of Lynn, 32 Mass. App. Ct. 152, 154 (1992); Fitchburg Housing Auth. v. Zoning Board of Appeals of Fitchburg, 380 Mass. 869, 874 (1980). Courts have specifically held that “[r]ehabilitation surely falls within the meaning of education.” Gardner-Athol Area Mental Health Assoc., Inc. v. Zoning Board of Appeals of Gardner, 401 Mass. 12, 15 (1987). However, “purely residential and purely recreational projects” do not qualify as “educational.” Regis College, 462 Mass. at 287.

Courts have consistently found that the Dover Amendment protects substance-abuse treatment programs with a primarily educational purpose, including both non-medication and medication-based treatment programs. Congregation of the Sisters of St. Joseph of Boston v. Town of Framingham exemplifies a non-medication based Dover-qualifying program. Recognizing that Massachusetts courts have interpreted education broadly to include activities “outside the realm of a traditional curriculum,” the court held that a nonprofit educational program for families, including those recovering from addiction, was a protected educational use. 1994 WL 16193868, at *2 (Mass. Land Ct. 1994).

Recently, in Spectrum Health Sys., Inc. v. City of Lawrence, No. 2015-288-C (Essex Super. Ct.), the court granted injunctive relief to a substance-abuse counseling and education center. In a March 9, 2015 Order, the court held that the plaintiff was protected by the Dover Amendment, noting that “Lawrence is one of a handful of communities within the Commonwealth that is significantly adversely impacted by issues of the economy, crime and substance abuse (now, especially opiate distribution and use/overdosing),” and determined that “by statute, Spectrum has a right to now operate.” The court entered a further order on April 6, 2015, requiring the defendant to “now issue to the plaintiff . . . an occupancy permit/certificate for the use and occupancy of” the commercial property at issue.

Courts also have held that programs that include medication (the focus of the recent HHS initiative) qualify for Dover Amendment protection. See, e.g., Fitchburg Housing Auth., 380 Mass. 869, 873 (1980) (“[t]he fact that many of the residents of the facility . . . will be taking prescription drugs does not negate its educational purpose or make its dominant purpose medical.”). Likewise, the court in Spectrum Health Sys., Inc. v. Town of Weymouth, Civ. A. No. 06-12133-RWZ, 2006 WL 3487030 (D. Mass. Dec. 4, 2006) granted injunctive relief to a provider seeking to operate a MAT program. The court determined that the program was “likely to prevail on the merits” on its claim that the municipality acted in violation of the Dover Amendment by refusing to issue building permits. The court ordered the municipality “to immediately allow Plaintiff . . . to operate the subject program.” See Order of December 7, 2006.

A similar ruling was made where a nonprofit corporation sought to site a MAT program in a commercial (and not medical) district. In Spectrum Health Sys., Inc. v. City of Haverhill, Civ. A. No. 2014-130-B (Essex Super. Ct.), by order dated January 31, 2014, the court endorsed an agreement whereby the municipality would issue the certificate of occupancy and the provider agreed to certain terms and conditions regarding the operation of the program. The order stated that the agreement was reached “after a full hearing by the Court, in which the Court advised that there was a likelihood of success on the merits of Plaintiff’s case and that the City of Haverhill potentially could face a sizable judgment of damages should the Plaintiffs prevail.”

The issue of whether a purpose is predominantly educational is often contested and may implicate disputed issues of fact. For example, in Regis College, the plaintiff proposed to construct a development at the college for older adults, which would require an application and interview process for admission. Regis College, 462 Mass. at 282. Residents would have academic advisors and “be required to enroll in a minimum of two courses per semester,” and could potentially “pursue degrees and certificates awarded to the plaintiff’s current student body.” Id. at 282-83. While the Land Court entered summary judgment for the defendant determining that the use did not meet the educational requirement, the Supreme Judicial Court vacated the decision, holding that there existed a dispute of fact regarding whether the program “will primarily operate in furtherance of educational purposes.” Id. at 281. The SJC noted that the “primary and genuine purpose” requirement ensures that “a party invoking Dover Amendment protection does so without engrafting an educational component onto a project in order to obtain favorable treatment under the statute.” Id. at 290. In other words, it is not sufficient to rely upon a stray educational purpose which is a minor element of an otherwise non-exempt project.

While municipalities cannot interfere with the siting of substance-abuse programs protected by the Dover Amendment, “such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.” M.G.L. c. 40A, §3, ¶ 2. However, municipalities may not restrict qualifying Dover uses beyond these regulations. Seee.g., Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 33-34 (1979) (“provisions of the Lenox by-law go well beyond the scope of bulk, dimensional, and parking regulations permitted to be imposed on educational uses by G.L. c. 40A, s. 3, and place the board in a position to act, as it did in this case, impermissibly to impede the reasonable use of the (institution’s) land for its educational purposes”) (quotations omitted).

2. The Federal Fair Housing Act

In addition to the Dover Amendment, the federal Fair Housing Act (“FHA”) is often invoked in disputes regarding a municipality’s opposition to the siting of a substance-abuse treatment program. The FHA establishes that it is unlawful to discriminate “in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” 42 U.S.C. §3604(f)(1)(A). Further, the FHA provides that it is “unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by” the Act. 42 U.S.C. §3617. This statute protects both for-profit and nonprofit providers of services to disabled individuals, and also provides for recovery of attorneys’ fees where a violation is established.

Under the FHA, a plaintiff can assert three distinct causes of action: “intentional discrimination (or disparate treatment), disparate impact, or failure to make a reasonable accommodation.” South Middlesex Opportunity Council, Inc. v. Town of Framingham, 752 F. Supp. 2d 85, 95 (D. Mass. 2010); Easter Seal Soc’y of New Jersey, Inc. v. Township of North Bergen, 798 F. Supp. 228, 234 (D.N.J. 1992) (township’s misclassification of the use, among other evidence, strongly suggested discrimination). Discriminatory intent “may be established against [a] public entity by demonstrating” discriminatory treatment, for example, by applying “different rules to the disabled than are applied to others.” Arc of New Jersey, Inc. v. New Jersey, 950 F. Supp. 637 (1996) (D.N.J. 1996).

Further, any interference or delay in responding to an application for a local permit may constitute a separate violation of the FHA. Specifically, Section 3604(f)(3)(A) states that “discrimination includes … a refusal to permit … reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.” Case law highlights that municipalities may not impose artificial obstacles to the siting of a facility providing services to the disabled, including the imposition of delay. By way of example, in South Middlesex, 752 F. Supp. 2d at 89, nonprofit educational corporations operating residential substance abuse treatment programs sued when, in response to a proposed relocation within the Town, the plaintiffs “encountered resistance from some of the residents and local officials” over a period of years. The court determined that discrimination under the FHA “includes delays in issuing permits that are caused in part by discriminatory intent, even if the permits are ultimately granted,” and stated that “[t]his case involves not only evidence in the record indicating delays, but also communications by the Defendants linking such delays to the nature of the projects and their residents.” Id. at 97-98. Accordingly, the court denied the defendants’ motion for summary judgment, finding that “there is sufficient evidence in the record to raise a dispute as to whether discriminatory action was taken.” Id. at 98.

Most recently, the Second Circuit reached a similar result in Mhany Mgmt, Inc. v. County of Nassau, No. 14-1634, 14-1729, 2016 WL 1128424 (2d Cir. Mar. 23, 2016). A non-profit housing developer and several residents alleged that the governmental defendants had re-zoned parcels of county-owned land to prevent the construction of low- and middle-income housing as part of a long-standing discriminatory policy to exclude racial minorities. The court determined that the defendants’ decision to re-zone was made with discriminatory intent and “was a knowing response to the vocal and racially influenced opposition among [defendants’] citizenry.” Id. at *19. The court held that “the district court was entitled to conclude . . . that something was amiss here, and that [defendants’] abrupt shift in zoning in the face of vocal citizen opposition to changing the character of Garden City represented acquiescence to race-based animus.” Id. at *24. Importantly, there was no requirement to establish that the governmental officials were themselves motivated by racial discrimination where they acted in “acquiescence” to the discriminatory objections from residents. The same principle applies in the context of Fair Housing Act liability for discrimination on the basis of disability or handicap.

Reasonable Accommodation Requirement

The FHA also establishes that it is a “discriminatory housing practice” to refuse to make

reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.

42 U.S.C. §3604(f)(3)(B). When a municipality refuses to make a reasonable accommodation in the implementation of its zoning “rules,” “policies,” or “practices,” the municipality violates the FHA. Oxford House v. Town of Babylon, 819 F. Supp. 1179, 1185 (E.D.N.Y. 1993).

It is settled law that a required reasonable accommodation may take the form of an exception to a zoning ordinance. As the First Circuit noted in Casa Marie, Inc. v. Superior Court, 988 F.2d 252, 270 n. 22 (1st Cir. 1993), “compliance with the zoning ordinances should be ‘waived’” as a reasonable accommodation. Similarly, the court held in Oxford House, 819 F. Supp. at 1186, that the failure to provide a reasonable accommodation is per se “discriminatory conduct” under the FHA, and stated:

Because one of the purposes of the reasonable accommodations provision is to address individual needs and respond to individual circumstances, courts have held that municipalities must change, waive, or make exceptions in their zoning rules to afford people with disabilities the same access to housing as those who are without disabilities.

An accommodation is “reasonable,” and hence required under the FHA, if it

does not cause any undue hardship or fiscal or administrative burdens on the municipality, or does not undermine the basic purpose that the zoning ordinance seeks to achieve.

Id.; seealsoOxford House v. Township of Cherry Hill, 799 F. Supp. 450, 462 n. 25 (D.N.J. 1992) (“‘Reasonable accommodation’ means changing some rule that is generally applicable to everyone so as to make its burden less onerous on the handicapped individual”).

3. Conclusion

By invoking the robust protections afforded by the Dover Amendment, Fair

Housing Act and other civil-rights statutes, attorneys can assist those on the front lines of substance-abuse treatment and prevention. While municipalities are empowered to impose reasonable regulations addressing the uses specified in the Dover Amendment, the proposed siting of a qualifying use cannot be derailed or delayed no matter how vociferous the opposition from neighboring residents or businesses. This set of legal protections constitutes a critical tool in promoting the availability of services for those suffering from the scourge of addiction.

[2] While the Dover Amendment does not include an attorneys’ fee provision, applicable civil rights statutes do. As a result, for example, the City of Pittsfield paid $100,000 in attorneys’ fees to a nonprofit corporation after initially refusing to permit a substance-abuse treatment program to operate. See “Taxpayers to pay for $100K clinic settlement,” Berkshire Eagle, August 14, 2012.

Paul Holtzman, a partner at Krokidas & Bluestein LLP, focuses on employment, civil rights and litigation matters, including discrimination, harassment, retaliation and whistleblower claims. He also serves as a mediator and arbitrator.

by Crystal Lyons

Heads Up

The opioid epidemic, in Massachusetts and nationwide, is a public health crisis demanding the attention and resources of all facets of government. One tool that has seen substantially increased usage is M.G.L. c. 123, § 35 (“Section 35”), which permits involuntary commitment of persons with alcohol or substance use disorder for treatment of up to 90 days if a court finds that they present a likelihood of doing serious harm to themselves or others. A petition under this section often accompanies an arraignment on criminal charges related to substance use, although not every individual subject to a Section 35 petition also faces criminal charges. The increase in usage has also spurred increased attention to the standards and processes that should apply to proceedings under Section 35. The involuntary commitment of women without any criminal charges to a correctional facility (MCI-Framingham) for treatment has been the focus of the most criticism and concern, including in articles in this Journal.

In response to the scrutiny, the Legislature and courts alike have recently updated and clarified the law. First, in July 2015, the Trial Court promulgated Uniform Trial Court Rules (“Uniform § 35 Rules”) to govern Section 35 commitment proceedings, which Rules went into effect February 1, 2016. Second, this past November, the Supreme Judicial Court issued its decision in In the Matter of G.P., “concerning the operation of § 35 as well as the … uniform § 35 rules.” 473 Mass. 112, 113 (2015). Third, in January 2016, the Legislature passed House Bill 3956, signed into law as Chapter 8 of the Acts of 2016 and effective April 24, 2016, which specifically amended Section 35 to bar sending women without criminal involvement to state prison for treatment. Finally, House Bill 4056 (“Opioid Bill”), passed and signed into law in March 2016, made one additional small change, extending the warrants for arrest under Section 35 for up to 5 business days. Once these changes are fully implemented, many of the previous concerns relating to Section 35—including the inherent limitations of the court system as a mechanism to access treatment services; the increasing number of individuals, in particular women, who are civilly committed to state prisons for treatment; and need for greater uniformity in commitment hearings—should be allayed. This article addresses the primary changes and clarifications made as a result of this recent court and legislative action.

First, as the title of this article suggests, the definitions in Section 35 were updated. In order to reflect the current, clinical understanding of the underlying disorder, the terms “alcoholic,” “substance abuser,” and “addict” were replaced with “a person with an alcohol disorder, substance use disorder, or both.”

Second, and most celebrated, under amended Section 35, women without criminal convictions may no longer be sent to MCI-Framingham for treatment when no beds at other facilities are available. To implement this reform, a total of forty-three new beds have been designated for women at Taunton State Hospital and Lemuel Shattuck Hospital to cover the estimated additional need. Under a new provision, however, a judge may evaluate the need to commit an individual to a secure facility “as the only appropriate setting for treatment” (often based on risk of violence)—men to MCI-Bridgewater and women to an as yet to be designated facility approved by the Department of Mental Health or the Department of Public Health.

Third, to standardize and expedite hearings, the new Uniform § 35 Rules clarify several procedural points. When a petition is first filed, the court must make an initial assessment to determine: 1) whether a proper party under the statute has made the filing and there exists a reasonable basis to believe the standard can be met; and 2) whether the respondent, i.e., the individual subject to the petition, is present and, if not, whether that particular court is the best venue to hear the petition.

Notwithstanding that individuals are increasingly looking to “section” themselves to access treatment when other treatment resources are unavailable or inadequate, under Section 35, an individual may not file a petition on his own behalf. Nevertheless, if the court determines that there is a strong basis for a petition, the court may ask a police officer or court official (often a probation officer) to step in as the statutorily qualified petitioner. Once the court finds both a reasonable basis for the petition and a proper petitioner, the petition may not be withdrawn or dismissed without leave of the court. This restriction against voluntary termination recognizes the public health and safety concerns underlying Section 35 proceedings and may help address the problem that occurs when family members or other petitioners develop cold feet as a result of pushback they may receive from a reticent respondent.

Under the second inquiry, if the respondent is present in court, the hearing must go forward without delay in that court (and bail should be set if the respondent is also arraigned on criminal charges). There are no venue restrictions for Section 35 petitions based on residency or otherwise, and adult hearings may proceed in juvenile court and vice versa. This frees petitioners to go to the court nearest to where they are able to locate the respondent, the court where criminal charges are pending, or the court nearest to where the petitioner may live or work (particularly where the petitioner is a treating physician or police officer).

When the respondent is not present at the time the petition is filed, the court may evaluate whether it is the most appropriate court to maintain the petition, and may issue a summons or, more frequently, a warrant for the respondent’s apprehension and return to that court during court hours only. The new Opioid Bill extended the time that the warrant may be returned from three to five business days. When a respondent is located far enough away from the originating court such that travel there during court hours is not practicable, officers may instead take the respondent to the nearest court, which can seek to have the petition transferred to that court. The Uniform § 35 Rules also clarify that the petitioner need not be present for the hearing to go forward (or she may appear remotely). This is helpful where a petition must be transferred to another court but the petitioner is unable to timely travel to the new court, as well as in those cases where the petitioner may be an on-duty treating physician who cannot leave the hospital.

Finally, in light of the respondent’s liberty interests at stake, in In the Matter of G.P., the Supreme Judicial Court clarified the standards for involuntary, civil commitment under the statute. The two primary rulings in the case establish that the appropriate standard of proof is clear and convincing evidence and that substantially reliable hearsay is admissible. This holding make Section 35 hearings analogous to probation violation hearings—a familiar standard for those in the criminal justice system.

The Court also addressed the type of evidence necessary to sustain a finding of clear and convincing evidence of likelihood of serious harm directly resulting from alcohol and/or substance use. Such risk can be established by demonstrating a substantial risk of physical self-harm, harm to others, or by showing that the respondent’s judgment is impaired to such a degree that there is a very substantial risk of physical impairment or injury. Each of the three methods also requires a showing of imminence of harm, which for purposes of Section 35 means not that the risk of harm must be immediate, but rather that it must materialize in the reasonably short term—meaning days or weeks rather than months. The Court elaborated on the types of evidence which would credibly support such an imminent risk: specific threats, proximate in time or numerous in nature, with the seriousness of the threats or past harm carefully weighed. Where a risk of harm to others is alleged, it must be of a substantial level of force and intensity to be categorized as “violent behavior” or “serious physical harm” under the statute. A simple pushing of another out of the way, for example, is not sufficient.

Under the third method (impaired judgment), the Court explained that the type of harm that may suffice was akin to an inability of the respondent to treat an injury or medical condition (e.g., failure to take prescribed medication or obtain regular dialysis) or a risk due to extreme weather conditions, and an inability of the respondent’s “community” to adequately address the risk. The ability of the respondent’s community to provide protection would likely be lower where an individual is homeless or living only with elderly parents or small children. A risk of overdosing may be sufficient under this prong, but only where “strong and specific evidence [is] presented that the risk of overdosing is indeed imminent and the degree of probability she will do so is high.” In the Matter of G.P., 473 Mass. at 129 n.23. A recent nonfatal overdose would likely satisfy this prong.

Both In the Matter of G.P. and the Uniform § 35 Rules address and protect a respondent’s right to present independent medical evidence and to appeal any commitment, allowing for both motions to reconsider and expedited review on appeal.

Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, and a member of the BBJ Board of Editors. She previously practiced business litigation, clerked for the Ninth Circuit Court of Appeals, and graduated Order of the Coif from UCLA School of Law. This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.

by Eric Hawkins

Viewpoint

Last February, the Massachusetts Alcoholic Beverages Control Commission (ABCC) presented an Everett-based beer distributor, Craft Brewers Guild, with a draconian choice: either face a lethal 90-day suspension of licensed activities, or pay an unprecedented $2.6 million fine, equal to half of projected profits for the time of suspension. This “choice” stemmed from admitted-to violations of laws forbidding bribery and price discrimination. In its Chapter 30A suit appealing the fine, however, the Craft Brewers Guild principally claims that (like its competitors) it simply did what was necessary—that “pay to play” is the industry norm, practiced by all or most, necessary for survival. And when viewed in context, this perhaps unusual defense forces the observer to take a second glance at how we regulate the industry and ask again: is this the best way?

First some background. The volcanic growth in the number of U.S. breweries is no secret. In 1978, American beer drinkers were served by an estimated 89 breweries, a post-Prohibition nadir. In line with the oft-dubbed “craft beer revolution,” last year saw an 18% increase over 2014’s record numbers, with the total number of breweries chiming in at 4225. Regardless of whatever paradox lies with choice, the market has permanently and fundamentally changed. And one consequence is simply space: no matter a bartender’s ingenuity, there are only so many actual tap lines in bars available to pour such unprecedented variety and creativity. Resultant competition for those lines is predictably fierce and growing fiercer.

Despite this altered market, these competing actors play on an old stage: an entrenched tapestry of regulation governs the alcohol market. In Massachusetts (like most states), the alcohol industry is artificially divided into three parts. Generally, (i) licensed manufacturers of alcoholic beverages (like a brewery) sell their goods to (ii) licensed distributors (like Craft Brewers Guild), who in turn sell to (iii) licensed retailers, such as a bar or liquor store—which then may serve the consumer. Vertical integration or substantial ownership between these three “tiers” is highly restricted; for the most part, they must operate independently. Notwithstanding its many critics, this tripartite demarcation at least intends to prevent organized and monopolistic crime, increase orderliness in what was once a disorderly market, and artificially inflate prices to bolster temperance.

Further, the Commonwealth extensively regulates the means and methods of business across the borders it erected. For example, if a brewer (one tier) wishes to stop selling beer to a particular distributor (another tier), it may not simply re-negotiate the contract. It must show cause to the satisfaction of the ABCC before doing so.

At issue in the Craft Brewers Guild story, however, is the regulatory decision to restrain the methods these tiers may use to compete.

The statute and regulation at play are G.L. ch. 138, §25A and 204 CMR 2.08. Section 25A forbids brewers and distributors from offering the same product to different purchasers on different terms. What is offered to one—be it price, credit or favor—must be offered to all. In turn, 2.08 forbids paying purchasers to carry a particular brand of alcohol. (For good measure, the federal Alcohol and Tobacco Tax and Trade Bureau forbids the same). Together, these rules intend to eliminate discrimination and prevent monopolization by a single major brand, in theory conserving fertile soil for up-starts and innovators while stifling disorderly conduct throughout the industry.

So on one hand, there’s unprecedented competition among a rapidly growing number of brands seeking increasingly scarce tap lines. On the other, a regulatory framework—codified in a different era—that artificially partitions alcohol distribution among three distinct entities and then attempts to prevent those entities from purchasing an advantage from one another. More players, scarcer resources, and tight restraints: this is context in which the ABCC’s fine of Craft Brewers Guild (and pending investigation into five bars) must be considered.

With that context in mind, this is what happened. Craft Brewers Guild, as part of a “pay to play” scheme, kicked back varying levels of cash and other favors to bars for putting its beers on tap (and thereby taking another distributor’s beer off). Although no brewers were cited in the decision, the ABCC speculated that Craft Brewers Guild would then accept (or demand) reimbursements from the benefited breweries. The legal issue is therefore clear: not all bars received the same kickbacks, and some received none at all, violating Section 25A’s prohibition on price discrimination; and tap space was purchased at the expense of other beer, violating 2.08’s prohibition on bribery. Media coverage reveals that the practice may be (perhaps necessarily) very common. But it was Craft Brewers Guild that was hit with the fine. And that sparks some thoughts.

First, there’sirony in a distributor of mostly craft beers running afoul a law meant in part to protect craft beers from larger market forces. And the irony is compounded by the fact the entire ABCC investigation grew from a seed planted by a series of angry tweets from the owner of the now-closed craft brewery Pretty Things, whose beers were carried by Craft Brewers Guild (but who presumably was not benefitting from the practice). At first blush his anger makes sense—the law should be followed, there’s a large variance in economic power even within the “craft” sector of the beer market, and consumer choice could still be largely inhibited by prices offered (or demanded) for tap lines that burden already-thin profit margins of emerging breweries. Yet, the fact that a craft brewer triggered an investigation into its own craft distributor indicates that a law meant in part to protect small companies from allegedly law-breaking “big guys” may in actuality be causing unintended consequences. One wonders whether emerging entities are most in need of market freedom to purchase space in a crowded field. Further, roles have been reversed: entities that typically resist what they consider byzantine restrictions are now essentially calling for stricter government enforcement. All of which is to say that it’s complicated: a simple pro/anti-regulation dichotomy is, as always, insufficient.

But fundamentally, when presented with a complicated background and a choice between a less-fettered market (with its risks) and rather ironic, sporadic and ineffectual enforcement of old laws with antiquated origins (by an agency that has regulated hesitantly in the past), one is hard-pressed to gleefully embrace the latter. The Suffolk Superior Court’s Chapter 30A review of the ABCC decision will, therefore, make for interesting reading. Arbitrary and capricious? Perhaps.

Eric Hawkins is an associate who works on a diverse range of matters within WilmerHale’s Litigation/Controversy Department. Prior to joining WilmerHale, Mr. Hawkins worked in the Administrative Law division of the Massachusetts Attorney General’s Office, where he researched, drafted and argued motions on behalf of various Massachusetts agencies facing administrative appeals and constitutional challenges. Throughout law school, Mr. Hawkins worked part time as a Brewery Ambassador for the Samuel Adams brewery in Boston.